DLLR's Office of Fair Practices

Employers wanting to select qualified and capable individuals through effective,
fair and lawful recruitment and selection processes are sometimes confused
about the legality or appropriateness of some pre-employment inquiries.
Although determining appropriate and nondiscriminatory questions to ask
when conducting pre-employment interviews or to include on employment
applications is not always an easy task, there are laws, guidelines and
policies that provide guidance in this area.

This chart will provide summaries of some related points made in relevant State and
federal equal employment opportunity laws and guidelines (primarily Title
VII of the Civil Rights Act of 1964, as amended, the Equal Employment
Opportunity Commission's (EEOC) 1981 Pre-Employment Inquiries Guidelines,
the Americans with Disabilities Act of 1990 and Article 49B of the
Annotated Code of Maryland). It is consistent with the provisions of the
Governor’s Code of Fair Employment Practices and §2 of the State
Personnel and Pensions Article.

General Points to Remember/Employers Should:

Standardize and Structure the Selection Process.

Determine Essential Requirements of the job before recruiting and interviewing.

Ask only those Questions Necessary to Determine Qualifications and Suitability, and ask all
questions of all applicants/candidates.

Maintain Job Related Documentation.

General Questions Employers Should Ask Themselves:

Will the answers to this question, if used in making a selection, have a disparate effect in
screening out minorities or members of one sex?

Will the response to this question screen out qualified candidates because of their
disability before their actual ability to do the job is evaluated?
(Americans with Disabilities Act (ADA) Title I Technical Assistance
Guide)

Is this information really necessary to judge an applicant's competence or qualifications
for the job in question? (EEOC's Pre-Employment Inquiries Guidelines)

Is this question permitted on the basis of a bona fide occupational qualification?

Is the employer a federal contractor or program subject to special employment/selection
guidelines?

Is the job part of a special affirmative action hiring program or consent decree and
therefore subject to special employment/selection considerations?

For further guidance in this area, refer to: the EEOC's Pre-employment Inquiries
Guidelines, the Maryland Human Relations Commission's Guidelines on
Employee Selection Procedures and the EEOC's Technical Assistance Guide on
the Employment Provisions of Title I of the Americans with Disabilities
Act.

SUBJECT

LAWFUL INQUIRIES/REQUIREMENTS

UNLAWFUL INQUIRIES/REQUIREMENTS

Age

Whether the applicant meets the minimum age requirement set by law; if
required as a Bona Fide Occupational Qualification (BFOQ); or
After hire, if inquiry serves a legitimate record-keeping
purpose.

That applicant state age or date of birth. That applicant produce proof of age
(birth certificate, baptismal record). Specifications such as:
"young", "college student", "recent
college graduate", and "retired person."

Arrests & Convictions

Inquiries about convictions that bear a direct relationship to the job and
have not been expunged or sealed by the courts. Consideration
should be given to the nature, recentness and rehabilitation.

Inquiries about a candidate's general arrest and conviction record.

Citizenship, Birthplace

After employment, verification of legal right to work (all new hires).

Inquiries regarding: the number and ages of children; what child care
arrangements have been made; family planning.

Disability

Whether applicant is able to perform the essential functions of the job with or
without reasonable accommodation. That applicant demonstrate how
she/he would perform the job and with what accommodation(s).
After a job offer, but before hire, require medical examination
for all similarly situated entering employees.

Requirement that applicant take medical examination or provide information about
workers' compensation claim(s) before a job offer. General
inquiries into the applicant's state of health or the nature and
severity of a disability.

Driver’s License

Inquiry if driving is necessary to the job.

Inquiring if all applicants have a valid driver's license regardless of
job.